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Law Review Weekly #4: Part 1 – “Something is rotten in the state of Denmark” – Hamlet

It can only be a matter of time, surely, before the fraud cops get their men and women in the City for the LIBOR – and who knows what other – frauds? HT to Tom Kilroy @kilroyt for the link to this appropriate pic on twitter (left). It appears that this photo has, in fact, been photoshopped – but it is still an amusing comment on the Barclays fraud – but not as amusing as this one (right).

It is a fair assessment of the MPs questioning Bob Diamond at the select committee last week to describe their efforts as ‘amateur’. While a few good questions were asked – there are reports on twitter that lawyers were sending tweets to MPs suggesting questions to ask – the questions lacked precision and cohesion and were doomed, inevitably, to fail to reveal Bob Diamond as anything other than a banker coached in how to not answer questions with a side specialism in selective memory and hyberbole expressed in his repeated statements of ‘love for Barclays’.

Parliament has gone on, inevitably with the Tories in power , to arrange for the investigation into the LIBOR fraud and corruption in banking generally to be handled by a select committee of amateurs – declining the opportunity to have the matter dealt with by a judge assisted by a lawyer skilled in the art of questioning leading to a greater likelihood of laying bare some semblance of truth through techniques of forensic legal excision.

John Thurso, the bearded Liberal Democrat ex-peer, intending to be critical of Diamond, inadvertently summed up the ineffectiveness of the MPs questioning thus: “If you were an English cricketer I think you would be Geoffrey Boycott – in occupying the crease for two hours I’m not sure we’re any further forward.”

Something is rotten in the state of Denmark.
– Hamlet (1.4.90), Marcellus to Horatio

Trust in the great institutions of the British establishment is, clearly, on the wane.

The MPs expenses fraud added to the lack of trust and respect we have for our ‘political masters’. The power of the Church of England, despite the absurd presence still of many Bishops in the House of Lords in 21st century Britain, has waned as we have become more secular and atheistic as a society and, increasingly, there are concerns about the legal system and the rule of law which in part underpins the working of our society.

Government is inflicting great damage to our legal system with the ‘cuts’. Legal aid is being taken away from the more vulnerable members of our society. The secretary of state for justice and lord chancellor, Ken Clarke, is believed by many criminal law practitioners, particularly at the Bar, to be on a ‘mission from God’ to destroy the criminal justice system and weight the odds in favour of the prosecution and the courts. The government applauded last year as our judges accepted the political requirement for swift justice in the wake of the riots – and many would argue that our judges stepped up to the plate badly and handed down sentences disproportionate to the harm and rather more severe than sentences for similar behaviour outside the context of ‘riot’. It is hardly surprising that many question the fairness of sending a young person to prison for looting a £3.50 bottle of water when we cannot manage to prosecute very much more serious corporate and banking fraud.

“We are very bad at prosecuting financial crime in this country,”
Mr Clarke said in an Interview with Radio 4’s Today programme.

The Telegraph reports: Kenneth Clarke has said that it is easier to “get away with” financial crime than practically any other kind.

Alex Bailin QC writes in the Guardian: The law catches up with Libor“The process for setting Libor is pretty much unregulated. That will have to change”

There are plans to engage in an orgy of swift justice, should it be necessary to bring villains and others to justice during the Olympics. Ironically, there are suggestions that some of our courts will have to close during the Olympic period because ‘Olympic chiefs’ will be wafting around London in the new Olympic ‘Zil’ lanes.

The Mail on Sunday reports this morning that serious villains who are currently being entertained by Her Majesty’s prison authorities are being moved quietly out of London lest, inspired by watching the pole vault and high jump, they escape during the Olympics (below). It appears that we won’t have enough Police – another problem with government cuts – to catch these escapees. The Police will be too busy ensuring that visitors to the Olympic games don’t engage in rioting, general affray and that most heinous of crimes – interfering with Corporate sponsor rights by bringing non sponsor bank credit cards, pepsi-cola and Wendy burgers into the Olympic Park.

In the wake of the experience last summer, I will not be surprised if newspapers report, two months hence, that the ‘swift justice’ plans further erode trust in the English criminal justice system. I hope to be proved wrong.

Charlie Gilmour, son of Pink Floyd band member, has an interesting article in the Mail on Sunday today – commenting on his time in prison and the disenfranchisement of many young people who were caught up in the riots and ‘swift justice’ of last summer

Faith in our legal system rests, to some extent, on a good understanding of how it works.

A video of her inaugural lecture, Purple Haze: The Danger of Being in the Dark about Judges can be found here

I very much welcome greater openness on the judiciary. Gone are the days of automatic deference to authority – thankfully. Much has already been done to open up our justice system. Parliament is televised routinely. We can watch proceedings in The Supreme Court on television. There are plans to televise other trials – or parts of them. Professor Cheryl Thomas is right – we do need to scrutinise the judiciary more closely.

The lack of judicial studies in the UK is unnecessary, unacceptable and dangerous. Amid growing media attention on the political role of judges, the British judiciary has become more open, often speaking publicly about important social issues. It is now time for the academic community to develop judicial studies in Britain so it too can contribute to a better functioning justice system and better public debate about the judiciary.

Professor Cheryl Thomas

It is bad enough when government inflicts wounds to the legal system. It is, arguably, even worse when the profession indulges in ‘self harming’ through incompetence.

The debate on criminal advocacy standards has been a fraught one. It is a debate about quality and the public interest, but it is also a debate about territory, and which profession gets to dominate the criminal defence system. Given the temperature of the debate, one would expect any independent regulator to take a forensic, principled and evidence-based approach to the resolution of the problems posed by intra-lawyer rivalry.

It is against this background that an astonishingly crass piece of research has been published by the Bar Standards Board, the Bar’s independent regulator. The Board’s chair, Baroness Deech, says the research provides, “a robust evidence base as to the high level of concern about advocacy competence in the criminal courts.” The solicitors‘ representative body, the Law Society’s CEO, Des Hudson describes it as “deeply flawed [and] self-serving research… It simply gave participants an opportunity to express their prejudices and self interest.”

And finally.. for this cheery snapshot of a possibly dystopian legal system for modern Britain – The Bar Standards Board has run into a few problems in relation to the new Bar Professional Training Course. I spent an interesting Friday and Saturday afternoon talking to lecturers, students and others on the problems which have arisen on the new centrally set BPTC. I now plan to go further into this topic and I have written to Janet Pugh of the Bar Standards Board for her thoughts on how the BPTC has gone this year. I have started to write to the deans of the law schools providing tuition for the BPTC.

It may be that the problems are ‘teething problems’. It may be that they are not and reveal a systemic failure which goes beyond minor incompetence. I shall try to find out. I suspect that this will take some time. Having founded BPP Law School with BPP Holdings plc and a team of my academic colleagues in the early 1990s – I retain an interest in legal education and, particularly, into instances where students are unfairly prejudiced by providers and regulators – should activity of this nature come to light.

5 thoughts on “Law Review Weekly #4: Part 1 – “Something is rotten in the state of Denmark” – Hamlet”

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way – in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.

One for Nick Cohen, who had to endure an evening of Wimbledon instead of Henry IV Part I perhaps.

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